DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490

Docket No: 11078-18 
Ref: Signature Date 

This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 9 April 2020.  The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application together with all material submitted in support thereof, relevant portions of your naval record, an Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. 

You enlisted in the Marine Corps on 11 November 1976.  On 12 April 1977, you went to non­judicial punishment (NJP) for unauthorized absence (UA) lasting 22 days.  On 27 June 1977, you received a written page 11 counseling warning (Page 11) documenting that you were not promoted to the rank of Private First Class (PFC) due to your prior disciplinary infraction.  On 15 March 1978, you received a written Page 11 warning documenting that you were referred to the Counseling and Assistance Center for a drug abuse screening.  On 29 September 1978, you received a written Page 11 warning documenting that you were not recommended for promotion to Corporal because you did not possess the force required of a non-commissioned officer to handle troops.  On 29 November 1978, you went to NJP for UA and two specifications of willfully disobeying a lawful order. On 12 December 1978, you received a written Page 11 warning documenting that you were not recommended for reenlistment because of your frequent involvement with military authorities and your reduction in rank to PFC.  On 20 February 1979, the suspended portion of the November 1978 NJP sentence was vacated and enforced for continuing misconduct involving UA.  On 8 March 1979, you received a written Page 11 warning documenting that you were not recommended for reenlistment because of your frequent involvement of a discreditable nature with military authorities. 

On 28 March 1979, you were convicted at a Special Court-Martial of UA, violating a lawful order, and breaking restriction.  As punishment, you received confinement for 60 days, forfeitures of pay, and a reduction in rank to Private (E-1). 

On 9 May 1979, you submitted a voluntary written request for a discharge under other than honorable (OTH) conditions for the good of the service in lieu of trial by court-martial for drug-related offenses involving three separate charges of violating a lawful order or regulation.  Prior to submitting this discharge request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. As a result of this course of action, you were spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  On 12 June 1979, you received a written Page 11 where you acknowledged that you were being assigned a reenlistment code of RE-4 because of your OTH discharge request.  Ultimately, on 12 June 1979, you were separated from the Marine Corps with an OTH discharge. 

Your contention that you suffered from bipolar disorder and depression was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 

A Navy mental health provider (MHP), reviewed your contentions and the available records and provided the Board the 21 June 2019 AO.  The MHP noted that you submitted limited evidence of a clinical diagnosis of depression aside from your personal statement and also noted that there is even less evidence that you were experiencing depression in military service.  The MHP opined that there was insufficient evidence to attribute your misconduct to a service-connected mental health condition. 

The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) that your drug addiction diagnosis was an error because you were self-medicating your mental health condition, (b) that the pattern of your behavior during your time in the Marines and since then was always an attempt to self-medicate, (c) that you have been diagnosed with bipolar disorder and depression, and (d) that you want to change your discharge so you can receive U.S. Department of Veterans Affairs (VA) benefits. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case given your voluntary request for an OTH discharge in lieu of a trial by court-martial and the overall seriousness of your pattern of misconduct. 

In accordance with the published guidance, the Board gave liberal and special consideration to your record of service and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concluded that there was insufficient evidence:  (a) to support a nexus between any bipolar and/or bipolar-related symptoms and your misconduct, (b) to support a nexus between any depression and/or depression-related symptoms and your misconduct, or (c) to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even with applying the liberal consideration standard, the Board concluded that your misconduct was not due to bipolar disorder, depression, or bipolar/depression-related symptoms.  The Board also noted that you denied experiencing any mental health issues on your separation physical.  Moreover, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board concluded that your pattern of serious misconduct and disregard for good order and discipline merited your receipt of an OTH discharge. 

Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including any arrests or convictions.  However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely, 


4/29/2020